Tips for Better Brief Writing and Oral Argument

by Hon. Donald C. Ashmanskas, US Magistrate, District of Oregon (deceased)

BRIEF WRITING

1. Concede Nothing: Judges are impressed by tough lawyers. Make your opponent fight for
every inch of ground, no matter how indefensible your position. If your opponent says today is
Monday, move to strike for lack of personal knowledge. If you are persistent, youll eventually
wear the other side down.

2. Use the Shotgun Approach: Make as many arguments as possible, no matter how weak.
When in doubt, most judges just tote up the points, e.g., plaintiff has ten arguments in her favor,
defendant only one, so plaintiff must have the stronger case.

3. Phrase Every Argument in the Alternative: If the complaint accuses your client of
violating NEPA by not preparing an environmental impact statement, you should simultaneously
argue that your client: (a) fully complied with all NEPA requirements for this project; (b) fully
complied with NEPA for a prior project, and this is just a continuation of that project; (c) was not
required to comply with NEPA; (d) complied with NEPA in spirit; (e) plaintiff lacks standing to
contest your failure to comply with NEPA; or (f)....

4. Dont Give Away the Surprise Ending: Briefs are like mystery novels you dont want
to ruin the suspense by revealing the surprise ending too early. Use the first 34 pages of your
brief to lay out the most complicated legal puzzle imaginable. Only after you have completely
befuddled the other side (and the judge as well) should you play your ace in the hole. In any
event, this is all academic because [fill in the blank]. The judge will be awed by your legal tour
de force.

5. Use All 35 Pages: One of the most embarrassing things you can do as a lawyer is to file a
15-page brief when the local rules allow up to 35 pages. Your little brief looks wimpy sitting on
the table next to your opponents power-brief with its 49 attached exhibits all housed in deluxe
wood-grain binders. You might as well attach a note saying: Sorry, but my client has a very
weak case and I cant think of any other arguments to make on her behalf. If you run out of
things to say, just repeat the same arguments over again. No one will notice.

6. Always Attach Exhibits: Exhibits lend an air of authority to a brief. It is no longer just a
lawyer making an argument; how you have documentary proof of your clients position. If you
dont have any exhibits, invent some. It really doesnt matter what you use because, if they are
fat enough and contain lots of technical-sounding fine print and rows of numbers, no one will
read them anyhow.

7. Ignore Controlling Authority: A lot of lawyers assume they have an ethical duty to cite
controlling authority contrary to the position advocated by their client; that is nonsense. By
definition, if the judge doesnt follow a case, then it is not controlling. If it is not controlling,
then you have no ethical obligation to cite the case. Seems simple enough to me.

8. Use String Citations: Anyone can cite the latest Ninth Circuit authority. What really
impresses the judge is citing a long list of pre-World War II cases from district courts in
Louisiana and Mississippi that your law clerk cribbed from an old ALR article.

9. Cite Corpus Jurus Secundum: Cant find a case on point? Just cite CJS. It is
comprehensive, authoritative and those Latin titles get the judge every time. It always worked for
Perry Mason. In a pinch, the Harvard Law Review will suffice.

10. Dont Shepardize: Shepardizing is expensive. If you cite a few dozen cases in a brief
(or, for you string-citers, perhaps a few hundred cases), that adds up to a lot of pocket change,
not to mention the time involved. Dont waste your money the odds are that the key cases you
cited are still good law. If they arent, youre cooked and there is nothing you can do about it
anyhow so, why throw good money after bad?

11. Cite Out-of-Circuit Authority: I dont know why people think the Ninth Circuit is so
special its just one of thirteen circuits. If Ninth Circuit case law doesnt favor your client, then
cite a circuit that is more hospitable. Timid attorneys may want to put a little but cf. XYZ (9th
Cir. 1993) at the end of the string-citation to avoid possible ethical problems. Alternatively,
point out that the Ninth Circuits position has not been followed by other circuits and urge the
trial judge to overrule the Ninth Circuit. Example: The circuits (with the sole exception of the
Ninth Circuit) are unanimous in holding that the Civil Rights Act of 1991 is not retroactive. The
Ninth Circuits position is clearly an aberration and should not be followed.

12. Attack Your Opponent: Your opponent is a sleazebag who should not be believed and
that is reason enough to rule against him. So be sure you attack your opponent in the brief, call
him names and impugn his motives.

13. Whine: Few federal judges are young enough to still have small children at home, but all
it takes is a pair of whining lawyers to bring back those nostalgic memories of two six-year-olds
squabbling. Judge, his brief is one page too long. Judge, he pretended to be negotiating with
me while he was secretly preparing a complaint. It will make the judge feel twenty years
younger.

14. Omit No Defense: Defenses were put on this earth for only one purpose to be used by
defense attorneys. Theres no sense letting them go to waste. Example: A prisoner filed a civil
rights action alleging that female clerical employees at a local jail had been viewing strip
searches of male inmates through a peep window. The defendants promptly moved to dismiss the
inmates claim on grounds of qualified immunity, i.e., that they didnt know that such conduct
was wrong. Some attorneys might have trouble asserting that defense with a straight face but
thats what junior associates are for.

15. Dont Read the Cases You Cite: Youre thumbing through the Federal Digest and you
find the perfect headnote you couldnt have written a better holding if youd tried. Should you
read the case just to be sure it really stands for that proposition? Of course not! Why spoil
perfection? A lot of bad things can happen when you go beyond the headnote and read the actual
case. You might discover that the court was applying Washington law instead of Oregon law, or
that there were some distinguishing circumstances. Ignorance is bliss.
16. Employ See Creatively: This is one of the most useful signals in brief writing. For
instance, you can cite a terribly complicated case to support an obscure procedural point (which
the case does not stand for). No one who reads the case can see in it what you could but are
they going to admit that? Of course not, because they dont want to admit they are not smart
enough to see the brilliant point you are making. This strategy works particularly well with law
clerks who graduated from big name law schools but are haunted by subconscious feelings of
inadequacy.

17. Argue Issues Not Before the Court: This strategy works for both briefs and oral
arguments. If the issue before the court is not your strongest, dont fight a losing battle. Change
the subject and argue some other issue where you have a chance of prevailing. For instance, if
the issue is change of venue, argue the merits of the case, e.g., there no point transferring this
case because the defendant cant win in any court.

18. A Little Latin Goes a Long Way1:

A. Because plaintiff has not shown he suffered measurable injury, his claim must be
denied.
B. De minimis non curat lex. Damnun absque injuria. Cadit quaestio.

Which paragraph sounds more authoritative? The second one, of course. Vel caeco
apparat. (It would be apparent even to a blind man.) Would you rather tell the jury that your
client was caught between a rock and a hard place, or a fronte praecipitium a tergo lupi (a
precipice in front, wolves behind)? If the defendant calls your client a lying cur, just smile
and say: Proprium humani ingenii est odisse quem laeseris. (It is human nature to hate a person
whom you have injured.) Everyone will assume that if youre smart enough to use all these Latin
phrases, the rest of your arguments must be of a similar caliber. Experto credite.

1
If you dont know any Latin, ask your local bookstore to order copies of Eugene Ehrlichs Amo, Amas, Amat and
More: How to Use Latin to Your Own Advantage and to the Astonishment of Others (Harper & Row 1985); Richard
A. Branyons Latin Phrases & Quotations (Hippocrene Books 1994) and Henry Beards Latin for All Occasions
(Random House 1990) and Latin For Even More Occasions (Random House 1991).
19. Dont Search for Recent Decisions: The job of a law clerk can be tedious. One of the
few pleasures they get is to uncover a recent decision that neither party cited. Why deprive them
of that pleasure by reading slip opinions or doing a Westlaw search?

20. Let Your Opponent Do Your Research: Dont have time to research the theories of
your case? No problem. Include the whole kitchen sink in your complaint and let the other side
sort them out in its motion to dismiss. Or maybe the judges law clerk can figure out which
theories are viable.

21. Always Get the Last Word: If your opponent files a reply brief, then you must file a
supplemental response. If she files a sur-reply brief, then you immediately file another
supplemental response. Following oral argument, send the judge a letter responding to your
opponents points. A letter is more effective than a brief because the judge wont realize it is a
brief in disguise until he has begun to read it. The better letters start by discussing some
innocuous procedural matter and then digressing to merits almost as an afterthought, or so the
reader would believe.

22. Assume the Judge Knows Everything About Your Case: Youve been working on this
case for months. You know the facts and the relevant law, and so should the judge. After all, if
she wasnt so smart she wouldnt be a judge. So, when writing a brief, just dive right into your
arguments without any introduction or background. Dont bother including a capsule summary
of your argument at the beginning the judge will figure it out eventually.

Conversely, you should assume the judge knows nothing about basic legal principles. A
classic example is a major law firm that devoted ten pages of a brief to explain the concept of
stare decisis to a veteran trial judge. Unfortunately, the controlling case was construing
California law and the judge was applying Oregon law. Oh well, non omnia possumus omnes.
(No one can be an expert in all things.)
23 File Your Brief Late: The best time to file a brief is Friday afternoon at 4:30 for an oral
argument on Monday. Thats particularly effective when the judges law clerk has already
finished her memo and now has to stay all weekend to revise it. You are assured of getting the
last word. You should also mail a copy to your opponent on Friday afternoon. With some luck,
he wont receive it until oral argument is over.

24. Cite Unavailable Materials: When citing unpublished district court opinions or similar
materials, never attach a copy to your brief. If the judge cant read the case youve cited, hell
have to take your word on its contents. That also applies to obscure 19th Century treatises, or
$600/year industry newsletters.

25. Move to Strike: Federal judges love motions to strike. Dont like something in your
opponents complaint? Move to strike the offending words. If your opponent files affidavits
opposing your summary judgment motion, move to strike the entire affidavits or particular
sentences in them. If you prevail on the motion to strike, you win the case since your summary
judgment motion is now unopposed.

Dont make the mistake of thinking a motion to strike is unnecessary because the judge
knows the rules of evidence and is perfectly capable of ignoring irrelevant statements, hearsay or
argument. The judge will be grateful for an opportunity to rule on another motion. Nowadays,
federal judges have so little on their calendars they look forward to all the extra work they can
get.

A novel spin off is to file a motion to strike your opponents affidavits on grounds the
facts stated therein were wrong and thus there are no disputed material facts and you are
entitled to summary judgment as a matter of law.

26. Dont Proofread Your Brief: Some attorneys waste valuable time proofreading a brief
in the mistaken belief that typographical or collating errors reflect badly on the quality of their
legal research. Wrong, wrong, wrong! Experienced attorneys know these errors actually make a
brief more effective. Why? Because if the pages are out of order, the law clerk cant just whiz
through the brief she has to stop and sort the pages. Smart lawyers not only collate the pages
out of sequence, but also make sure the pages are not numbered. Now the law clerk must read
each page carefully to ensure one idea follows the next. What more could you ask?

Another tip: If you omit key words, paragraphs or sentences, the law clerk must try to
decipher what you meant to say and they may come up with a better argument than the one you
had in mind. You also get to file an amended brief with the corrections, which the law clerk must
read carefully to compare the two documents, one line at a time, to determine which changes you
made.

27. Dont Identify the Changes in Amended Documents: When filing an amended
document (e.g., complaint, brief), do NOT attach a cover letter listing the changes. That way the
reader must carefully compare the two documents, one line at a time, to determine what changes
you have made. Sure thats rude, but at least you know the law clerk will carefully read your
brief.

28. Put the Wrong Case Number in the Caption of Your Brief: If the case number is
wrong, the brief may be sent to the wrong judge or incorrectly docketed. That holds true for any
filing. A surefire way to maximize confusion.

29. The End of the World is Near: No brief is complete without a description of the parade
of horribles that will result if your opponent prevails. This is not just a motion to extend
discovery. The future of the universe is at stake.

30. Always Request Expedited Consideration: If you file a plain vanilla motion, it will
ordinarily not be heard for another five weeks. Smart lawyers always request expedited
consideration. Most of the time, it really is an emergency because you waited until the last
minute to file the motion. Even if it isnt a true emergency, you should still act like it is. You
dont want the judge to get the idea that your motion isnt very important. See The End of the
World is Near, supra.
 ORAL ARGUMENT

31. Demand Oral Argument Whether You Need It or Not: That adds a lot of billable
hours (e.g., travel time).

32 Read Your Brief to the Judge: The judge may say shes read your brief, but shes just
trying to make herself look good. Deep down, you know shes lying. So read her your brief
word-for-word. Youll be glad you did.

33. Dont Let the Judge Interrupt Your Presentation: Youve spent all week preparing
your presentation and its a work of art. No one who hears your speech could possibly rule
against you. The problem is, the judge wont let you give your speech. He keeps interrupting you
with questions on subjects you dont even care to discuss. How rude! Tel the judge politely but
firmly that you will be happy to answer of any of his questions, but only after youve finished
making your presentation.

34. Cite New Cases and Theories: Use oral argument as an opportunity to surprise your
opponent (and judge) by citing new theories and cases you didnt mention in your briefs. If
youre lucky, your opponent will be unable to refute your argument because he has never even
heard of the case you just cited.

35. Bad Mouth the Judge in Front of His Staff: One of our more flamboyant local
attorneys warmed up for oral argument by loudly complaining about: (a) having been removed to
federal court; and (b) having to appear before a magistrate judge who is not even a real judge.
The attorney made sure the judges law clerk, courtroom deputy and judicial assistant were all
present to witness the performance.

36. Ignore the Standard of Review: Standards of review are a real pain. They take up
valuable space in your brief, they interrupt the flow of your argument and they are a pain to
research. My advice is to ignore them. If it is a summary judgment motion, everyone knows the
standard of review so you dont need to include it. If it is any other type of motion, you probably
have no idea what the standard of review is and dont really care either. If the other side is so
concerned about the proper standard of review, let them research it.

Should the judge be so foolish as to inquire at oral argument (and thereby admit that he
doesnt know the standard), simply say: The standard of review is irrelevant, Your Honor,
because my client would prevail regardless of which standard is applied.

37. Cancel at the Last Minute: If you know two weeks before oral argument that youll be
withdrawing your motion, or have reached a stipulation with your opponent, why spoil the fun
by calling the court to cancel the argument? Leave it on the calendar so the judge wont be
bothered by booking other engagements and the law clerk isnt deprived of a chance to write a
fascinating memo on the Nonappropriated Fund Instrumentalities Employees Retirement Credit
Act of 1986.

38. Talk Fast so the Court Reporter Cant Keep Up: Self-explanatory.

39: Use It or Lose It: Youve written the speech of your life but, before you can deliver it,
your opponent stands and announces that he wont contest your motion; or the judge announces
that hes inclined to rule in your favor and you havent even said a word. What rotten luck!
Now no one will have an opportunity to hear your great speech. There is no satisfaction from the
meek surrender of a cowardly foe you want to vanquish him on the field of battle. Even worse,
your client is in the audience and youre wondering how on earth you will be able to justify that
huge bill youre going to send her.

My advice is to give the speech anyhow. Refuse to accept your opponents meek
capitulation. The calendar shows one-half hour allotted for oral arguments and, by golly, youre
going to use it even if the outcome is a foregone conclusion. Your client will be impressed and
dont worry about all those horror stories of lawyers talking their way out of a victory they had
already won that only happens to other lawyers.